Thursday, February 02, 2017

Jeff Greenfield discusses four rules of politics that will affect whether or not Judge Gorsuch gets confirmed. The first rule is that when the President's party controls the Senate, confirmation is very likely. As he points out, the nominees who have been defeated have all, except Abe Fortas, been nominated by a president whose party didn't control the Senate. Senators have been increasingly likely to support the nominee of their party's president. I hadn't really thought about this history.

In the past quarter-century, there have been virtually no defections from senators who belong to the same party as the president. Not a single Democrat voted against Bill Clinton’s two nominees, Ruth Bader Ginsburg and Stephen Breyer; only one, Nebraska’s Ben Nelson, voted against one of Barack Obama’s choices (Elena Kagan). Not a single Republican voted against John Roberts, and only one did not back Samuel Alito (that was Lincoln Chaffee, who soon left the GOP).

I don't think any Republican senator is not going to back Gorsuch. It would probably be political suicide and they don't need to make some sort of stand since Gorsuch is such an eminently qualified nominee.

Greenfield argues that the fear that a candidate would go rogue once on the bench should be diminished. This is a fear particularly for conservatives have long held and in the hearts of many conservatives the chant "No More Souters" resonates.

But Souter is the last example of a justice who broke from his expected past. Every appointee since has been at root a reliable vote on the judicial left or right. (Yes, there are occasional exceptions, like Roberts’ votes to uphold the Affordable Care Act, but they are few and far between.)

Indeed, presidents have even stopped pretending; it used to be that they would ritualistically deny imposing any “litmus test” on issues, even though they knew full well that a Ginsburg was going to affirm abortion as a right and a Scalia was going to reject it. But now, candidates for president boast of such a test; Hillary Clinton proclaimed that she would name justices who supported “a woman’s right to choose,” and Trump promised exactly the reverse.

And finally, thanks to Harry Reid and Senate Democrats, the filibuster is highly endangered.

I believe this, even though we come from different sides of the political spectrum. I was an acting solicitor general for President Barack Obama; Judge Gorsuch has strong conservative bona fides and was appointed to the 10th Circuit by President George W. Bush. But I have seen him up close and in action, both in court and on the Federal Appellate Rules Committee (where both of us serve); he brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court....

I, for one, wish it were a Democrat choosing the next justice. But since that is not to be, one basic criterion should be paramount: Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws?

I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him. Judge Gorsuch’s record suggests that he would follow in the tradition of Justice Elena Kagan, who voted against President Obama when she felt a part of the Affordable Care Act went too far. In particular, he has written opinions vigorously defending the paramount duty of the courts to say what the law is, without deferring to the executive branch’s interpretations of federal statutes, including our immigration laws.

If Gorsuch defers to the law and Constitution, I don't mind at all if he were to rule against President Trump if his actions violate either.

Randy Balko, a strong libertarian, argues that Trump gave Democrats a gift in nominating Gorsuch because he is not an ideologue. Balko wants a judge who is strong enough to stand up to executive authority and, in the age of Trump, Democrats should also want that. Balko is heartened by what Neal Katyal wrote about Gorsuch in that respect.

Katyal’s passage above also references the Chevron deference, a doctrine under which the courts defer to regulatory agencies’ interpretations of law unless those interpretations are unreasonable. Gorsuch has been critical of the doctrine. As a libertarian, I think that’s generally a good thing. The deference is premised on the notion that the executive is more subject to democratic checks — if we don’t like the policies of one president, we can vote in a new one. But the non-political positions within regulatory agencies can still wield a lot of power, and the courts ought to serve as a check on them. Progressives who might be troubled by Gorsuch’s skepticism of deference to regulatory agencies should keep in mind that we’re now in the Trump era. Not only will Trump be staffing those agencies and setting policy for them, but also he’s more likely than any recent president to staff them with appointees with little respect for previous norms. Recall that during the transition, Trump’s team rather forebodingly asked agencies for lists of careerists who work on hot-button issues, such as climate change. Moreover, while progressives may be worried by what Gorsuch’s skepticism of the Chevron deference means for the Environmental Protection Agency or the Food and Drug Administration, his record shows that of a judge willing to apply it to an agency like the Department of Homeland Security. Again, that’s important right now.

If you're interested in reading more about how Judge Gorsuch has ruled on various issues, Eugene Volokh and his co-bloggers are doing an admirable job of summarizing his rulings on cases relating to criminal defendants and the rule of law.religious freedom, civil liberties, and freedom of speech. I found these discussions very helpful in getting a feel for the careful and thoughtful way he approaches cases and become more impressed the more I read.

The problem with this argument is that most Senate Democrats were willing to filibuster a Supreme Court nominee before Garland was nominated, let alone blocked by Republicans. Indeed, before Barack Obama was even elected president, prominent Senate Democrats and progressive activists tried (but failed) to filibuster President George W. Bush’s nomination of Samuel Alito. Thus, the argument that the only reason Senate Democrats would filibuster Gorsuch is payback for Garland is complete and utter nonsense.

He reviews the history of the attempt by Democrats such as Sens. Chuck Schumer, Dick Durbin, Dianne Feinstein, John Kerry, Hillary Clinton and Barack Obama. Liberal advocacy groups pushed for a filibuster. Liberal academics supported a filibuster.

The effort to filibuster Alito’s confirmation was not an aberration but a sign of how Senate Democrats planned to respond to future Republican nominations to the Supreme Court. How do we know? Because they said so.

After Alito was confirmed, Schumer gave a speech to the American Constitution Society in which he said he “should have done a better job” fighting Alito’s confirmation. “My colleagues said we didn’t have the votes, but I think we should have twisted more arms and done more.” In other words, he should have fought harder to make the filibuster successful. In this same speech, Schumer proclaimed he would urge his colleagues not to confirm any future Supreme Court nominations made by Bush, save in extraordinary circumstances. (In other words, he said he would urge Senate Democrats to do to Bush what Senate Republicans did to Obama, as did then-Sen. Joe Biden had in 1992.)

As the record plainly shows, Senate Democratic leaders and progressive activists are not urging a filibuster of the Gorsuch nomination solely as retaliation for the Senate Republicans’ poor treatment of Garland. They are instead pushing Senate Democrats to simply do what they’ve done before and said they would do again.

Adler also argues against the idea that it's fine to filibuster anyone Trump would nominate because of Merrick Garland.

Let me also address the argument that obstruction is justified because the open seat on the Supreme Court was “stolen.” First, the argument that the open seat on the Supreme Court was “stolen” is curious. The idea seems to be that if there is a judicial vacancy, it belongs to the president in office. If that is the case, however, then we have had many “stolen” judicial seats, as there have been quite a few instances in which presidents have nominated qualified individuals to open seats on the federal bench and the Senate sat on its hands. For example, in fall 1991, President George H.W. Bush nominated Lillian BeVier and Terrence Boyle to open seats on the U.S. Court of Appeals for the 4th Circuit. The Senate Judiciary Committee took no action on either nomination. The same thing happened to John G. Roberts Jr. when he was first nominated to the U.S. Court of Appeals for the D.C. Circuit in January 1992. If the current Supreme Court vacancy was “stolen,” then these vacancies were “stolen,” too (as were the vacancies for which Senate Republicans refused to consider President Bill Clinton’s nominees).

Is the Supreme Court different? It’s certainly more important, but there is only one appointments clause in the Constitution, and Congress determines how many seats there are on the Supreme Court, just as it determines how many seats there are on lower courts. The argument that the Supreme Court is different is an argument not that only Supreme Court vacancies may be “stolen” but rather that it’s okay to steal some seats but not others. That’s an understandable political position, but it’s hardly a question of principle.

The WSJ writes on the same theme about how the idea that the Republicans were the ones to initiate warfare over a Supreme Court nomination is a myth. They refer to Schumer's 2007 speech declaring that Democrats should not confirm any Bush nominee to the Supreme Court. Remember, that was when the Democrats held the Senate. There was no opening at that time, but the Democrats were ready to block confirmation if there had been an opening and a Bush nominee.

The Democratic theft standard goes back further to Joe Biden’s days as chairman of the Senate Judiciary Committee. In June 1992 in President George H.W. Bush’s final year, Robber Joe opined that the President “should consider following the practice of a majority of his predecessors and not name a nominee until after the November election is completed.”

Naming a new Justice, he said, would ensure that a confirmation “process that is already in doubt in the minds of many will become distrusted by all.” If Mr. Bush made an election-year nomination, Mr. Biden said his committee should consider “not scheduling confirmation hearings on the nomination until after the political campaign season is over.”

Does anyone outside the MSNBC audience think that had the roles been reversed in 2016, and a Democratic Senate faced a Republican Court nominee, Harry Reid would have held a confirmation vote? As John McEnroe liked to shout, “You can’t be serious!”

The “stolen” myth is being used to justify a filibuster that could block Judge Gorsuch’s confirmation with as few as 41 votes. Mr. Schumer said Tuesday that “the Senate must insist upon 60 votes for any Supreme Court nominee, a bar that was met by each of President Obama’s nominees.”

There he goes again. Republicans never invoked the trigger for a filibuster known as “cloture” against either Sonia Sotomayor, who was confirmed 68-31 in 2009, or Elena Kagan, who was confirmed 63-37 in 2010. Republicans also helped to whoop through Bill Clinton nominees Ruth Bader Ginsburg 96-3 and Stephen Breyer 87-9.

The only recent attempt at filibustering a Supreme Court nominee was by Democrats against George W. Bush nominee Samuel Alito in 2006. Twenty-five Democrats filed for cloture, led by then Senator Obama, Hillary Clinton and Mr. Schumer. They lost that vote, but sometimes we fear that Senator Schumer’s memory may be fading since he can’t seem to recall his previous actions.

Just like Bill Murray in Groundhog's Day, the Democrats are doing the same thing over and over. Then they lie about their actions and project what they were the ones to do onto the Republicans. And now, if the Republicans have to break a filibuster to confirm Gorsuch, they'll have a model from the Democrats to follow.

But if forced to do so, Mr. McConnell can also invoke a Democratic precedent. Mr. Reid broke the filibuster to pack Mr. Obama’s nominees on the D.C. Circuit Court of Appeals, and last year he said Democrats would do the same for the Supreme Court if Mrs. Clinton won the election and his party held the Senate. “I have set the Senate so when I leave, we’re going to be able to get judges done with a majority,” he said. “They mess with the Supreme Court, it’ll be changed just like that in my opinion.”

Losing vice presidential candidate Tim Kaine promised the same last October. “If these guys think they’re going to stonewall the filling of that vacancy or other vacancies,” Mr. Kaine said, a Democratic majority “will change the Senate rules to uphold the law.”

Judge Gorsuch is such a distinguished nominee that he ought to be confirmed 100-0, but if Democrats try and fail to defeat him, the world should know that they are the authors of their own political frustration.

California elected officials are leading a courtroom charge to bulldoze the 1958 NAACP v. Alabama Supreme Court decision that guarantees anonymity for non-profit donors who might otherwise be subjected to death threats and other forms of intimidation.

The California attorney general’s (CAG) requirement that nonprofit groups disclose donor identities in order to solicit donations in the state threatens more than First Amendment rights. Nonprofit groups filed 10 amicus briefs Friday before the U.S. Court of Appeals for the Ninth Circuit in Americans for Prosperity Foundation (AFPF) v. California Attorney General Xavier Becerra.

“The California attorney general is callously neglectful of an atmosphere that is now crazed and even violent towards people who dissent from progressive doctrines, who speak out against radical terrorism, and others who may simply be in the wrong place at the wrong time,” the amicus brief from American Target Advertising reads. “The times are dangerous for dissent and association by conservatives.”

The nonprofit community has long viewed NAACP v. Alabama — which decided state officials infringed on First Amendment freedom of association rights by demanding NAACP donor identities — as a key safeguard.

Liberals used to care about the right to associate which is subsumed within the right to assemble in the First Amendment. But they're now willing to throw that out so they can intimidate those who donate to causes unpopular among liberals such as opposition to gay marriage. But such actions by California and New York's attorneys general to gain access to the names of donors also threatens liberal groups.

The NAACP Legal Defense Fund (LDF) recognized that threats to freedom of association are dangerous to all nonprofit organizations and risk individuals’ safety.

“In an increasingly polarized country, where threats and harassment over the Internet and social media have become commonplace, speaking out on contentious issues creates a very real risk of harassment and intimidation by private citizens and by the government itself,” the NAACP LDF wrote.

“Furthermore, numerous contemporary issues — ranging from the Black Lives Matter movement, to gay marriage, to immigration — arouse significant passion by people with many divergent beliefs. Thus, now, as much as any time in our nation’s history, it is necessary for individuals to be able to express and promote their viewpoints through associational affiliations without exposing themselves to a legal, personal or political firestorm.”

Megan McArdle reflects on the thought that the turnout for protests against Trump indicate that Democrats are on the rise since their electoral losses in November. She points out that cities are mostly demographically Democratic so it's easier for them to get people out for protests.

But there are a lot of small towns in America, and those small towns are redder than ever, as Sean Trende and David Byler wrote on the RealClear Politics website. Effectively, the Democratic coalition has self-gerrymandered into a small number of places where they can turn out an impressive number of feet on the ground, but not enough votes to win the House. Certainly not enough to win the Senate or the Electoral College, which both favor sparsely populated states and discount the increasingly dense parts of the nation.

They need to win back rural votes, but are they ready to do so or are they relying on the theory that there is an emerging Democratic majority of minorities, young people, and elites.

Why was this such a bad theory? Let me count the ways:

1. The emerging Democratic majority isn’t emerging as fast as people thought.

Obama had unusually high turnout and support among black voters. He was also a phenomenally gifted campaigner in his own right, who garnered a lot of extra votes from people of all ethnicities and all walks of life. These two things gave Democrats the illusion that the future was arriving faster than it actually was. When Obama wasn’t on the ticket, and minority voting habits returned to a more normal pattern, millions of Democratic votes evaporated.

2. The votes of the emerging Democratic majority are extremely inefficiently distributed.

As Trende and Byler write:

“In our system of government, popular vote metrics are only sensible when put through a geographic filter. This causes problems in the Electoral College, which we’ve recounted before. There are only nine ‘mega-cities’ in America: New York, Los Angeles, Chicago, Washington, D.C., Philadelphia, Miami, Atlanta, Houston, and Dallas. These, in turn, affect 11 states: New York, New Jersey, Connecticut, California, Illinois, Virginia, Maryland, Pennsylvania, Florida, Georgia and Texas. In other words, in seven of these states, further growth in this area does no good for Democrats, as they are already blue. In three others (Pennsylvania, Florida and Georgia), the rural areas, towns, and small cities cast enough votes to outvote the mega-city. The final one — Texas — may be the key to a Democratic majority down the road, but Hillary Clinton still lost it by nine points, with a lot of [Mitt] Romney’s votes going to third party candidates. Put differently, the place where the Democratic coalition is growing the most does them the least good, electorally speaking.”

Immigration as an issue might not be helping Democrats as much as both Democrats and Republicans seemed to think. First of all immigrants assimilate and stop voting as much as an ethnic bloc. If Trump slows down the rate of immigration, that decreases the numbers to emerge as Democratic voters. And as the Democrats appeal so explicitly to ethnic minorities, white voters may well start emulating that pattern and start voting as an ethnic bloc themselves.

A majority-minority America is one in which “white” is a salient voting identity in a way that it never has been outside of heavily black areas of the South. As Nate Cohn of The New York Times tweeted after Trump’s stunning upset: “How to think about this election: white working class voters just decided to vote like a minority group. They’re >40% of the electorate.” This was the first election in which we’ve seen that happen. It probably won’t be the last. And an electoral strategy that starts by assuming you’ve lost a plurality of the country is a rough ticket to victory, especially given the geography. You can wait for them to die, of course. But that’s going to take decades.

Democrats could roar back in 2018 or 2020. But it won’t be automatic. They’re going to have to abandon the idea that all they need to do to return to power is wait.

Of course, don't underestimate the ability of Donald Trump to lose those voters who put him over the top in 2016. He shouldn't forget that a swing of around 77,000 votes from Pennsylvania, Michigan, and Wisconsin, and Hillary Clinton would have been the one making a Supreme Court nomination this week. He shouldn't take those voters for granted. And given that he won the votes of some people who hadn't voted much in the past, they could just stay home again if they decide that their gamble on Donald Trump hasn't paid off.

Britain moved closer to leaving the European Union Wednesday as lawmakers backed a bill authorizing divorce proceedings and kept alive the government's plan to trigger Brexit talks within weeks.

The House of Commons decisively backed the bill by 498 votes to 114, sending it on for committee scrutiny. The result was a victory for the Conservative government, which had fought in court to avert the vote out of fear Parliament would impede its Brexit plans.

Lawmakers also defeated a "wrecking amendment" proposed by the Scottish National Party that sought to delay Britain's exit talks with the EU because the British government has not disclosed detailed plans for its negotiations.

During two days of debate in the House of Commons, many legislators — Euroskeptic and Europhile alike — said they would back the bill out of respect for voters' June 23 decision to leave the EU.

Matt Lewis cheers on the efforts of President Trump to roll back the administrative state.

The problem has been around forever. Alexis de Tocqueville warned of this “soft despotism.” But the power of unelected bureaucrats and supposedly apolitical “experts” to make and impose rules and regulations really took root and blossomed from the time of Woodrow Wilson’s administration. Although conservatives often complain about this fourth branch of government, nobody has taken the initiative to change it. Until now.
To be sure, there are regulations that deserve unanimous support. Nobody wants to drink dirty water or eat poisoned food. However, rules can become unwieldy. They can create a situation that discourages innovation and job creation. There must be a balance, and many Americans have the sense that the balance has tipped in favor of regulation over jobs.
A study conducted a couple of years ago by the National Association of Manufacturers (NAM) found that “the average U.S. company pays $9,991 per employee per year to comply with federal regulations,” and that “the average manufacturer in the United States pays nearly double that amount—$19,564 per employee per year” (PDF). It is even harder on small manufacturers, who pay $34,671.
If President Trump’s goal is to bring back manufacturing jobs (and let’s be honest—he has a lot of Rust Belt Americans to thank for his election), reducing onerous regulations would go a long way. What is more, unlike some of his rhetoric and proposals to curb globalism and immigration, cutting the cost of hiring an American worker would help solve a very real challenge: The rise of automation and robotics. Of all the things that Republicans might embrace to help spur the economy, the decidedly “un-sexy” topic of regulatory reform is probably one of the most underrated.
“As a Republican, we focus so much on taxes,” said Ken Cuccinelli, head of the Senate Conservatives Fund and a former attorney general of Virginia. “But there is nowhere in governance today where there is more opportunity to have a longer-term impact on liberty and our economy faster. Even if you pass tax reform, you wouldn’t see an impact for a year and a half. They could get nearly immediate economic impacts by shelving the Clean Power Plan.”

For all the barriers that women face, we have abundant freedoms and privileges that are not available to men. For example, if we choose not to spend our entire lives scrambling up the ladder of career success, nobody will care. If we want to marry men who make more money than we do (and let’s face it, most of us do, no matter what we say), nobody will think we’re being exploitative. No one looks sideways if we decide to stay home for a while to be full-time moms and housewives. Conversely, stay-at-home men have low, low social status (and, often, low self esteem). In many ways, women have a far wider range of socially acceptable life choices than men have.

It’s true that men make more money, but the myth that women only make 78 per cent of what men make is an alternative fact that does not stand up to reality. Besides, who does the dirty work? Not us. We may not be CEOs, but we generally enjoy nice indoor work in the winter.

As the cranky feminist Camille Paglia notes, “It is men who heft and weld the giant steel beams that frame our office buildings, and it is men who do the hair-raising work of insetting and sealing the finely tempered plate-glass windows of skyscrapers 50 stories tall.” The vast majority of workplace fatalities are male. So are the vast majority of workers in policing, firefighting, war and other lethal professions. Do you think this arrangement is unfair to women? Me neither.

As for violence, men are the chief victims. Men make up three-quarters of all murder victims, and are far more likely to be the targets of more serious forms of assault. Eighty per cent of all reported attacks by strangers are on men. Men are also 2.5 times more likely to be sexually assaulted in institutional settings such as schools. And, of course, women live longer.

Meanwhile, women are outperforming men at all levels of education, from kindergarten to graduate school. Women make up at least 50 per cent of Canadian law school graduates, and outnumber men at most medical schools. In fact, advanced countries may be graduating too many female doctors. Women tend to concentrate heavily in family-friendly fields like family medicine and psychiatry, to see fewer patients, to work shorter hours and retire earlier, and to avoid more gruelling specialties such as surgery. This is going to be a challenge for the health-care system. As one critic noted, “Empathy and communication skills are important, but so are efficiency and the ability to live with risk.”

As for discrimination in the STEM fields, I have surprising news. There is indeed a large bias in faculty hiring – in favour of women.

Exactly. I've been thinking this for years. I dislike seeing the young women I teach embrace this idea of their own victimhood in some sort of vague way that they don't recognize in their own lives and experiences but seem to expect to encounter once they leave the shelter of their homes and high school and go out into the world.

Sports reporters seem to be unable to stop themselves from inserting their politics into discussion of sports. I know that I am not alone in turning to watching sports partly to get away from the ugliness that permeates the political scene these days. I don't want to know whom athletes voted for any more than I care whom celebrities supported. That's why it has become so irritating to hear reporters bug Tom Brady to talk about his friendship and supposed support for Donald Trump. Come on. It's the Super Bowl. If you don't have questions about football then you shouldn't be employed in sports journalism. Karol Markowicz nails it when she tells the media reporters to just stop it.

Brady and New England coach Bill Belichick, who have supported Trump in the past, would prefer to focus on beating the Atlanta Falcons. Instead they’re pestered with questions about the president’s immigration program. Why? Did Obama-loving sports figures get taken to task when the ObamaCare rollout was an unmitigated disaster or when drone strikes approved by the ex-president killed guests at a wedding in Yemen?

This coercion — defend your friend! — only seems to come from one direction. And it’s part of the reason Trump won. When every issue is only allowed to have one possible viewpoint, people rebel and turn to an outsider candidate.

On ESPN’s “First Take,” Max Kellerman “defended” Brady pushing off questions about Trump. Only, that is, until after the Super Bowl. Kellerman said it’s important to have an “excuse” for Trump support, such as the one offered by Patriots owner Robert Kraft that Trump was there for him after his wife passed away, though he ultimately argued that Kraft’s excuse is insufficient.

But why should an excuse be necessary? ESPN contributor Will Cain argued back to Kellerman that only people who haven’t had to defend their views under eight years of Obama can believe it’s normal to flog a quarterback because of whom they supported for president.

In a debate with ESPN senior writer Mina Kimes and ESPN personality Domonique Foxworth, Cain tweeted that the “63 million people who voted for Trump should be debated, persuaded. Not ‘called to account.’ Same for Brady.”

But debate isn’t good enough for Trump’s opponents. No, you must recant, apologize, disavow. You must be punished. No one imagines Tom Brady will launch into a defense of refugee policy during his press conference. They want to hear him say he no longer supports Trump.

I didn't realize that some hotels use motion sensors to turn on and so turn off if someone is sleeping soundly. From my experience in hotels has led me to just not believe what the thermostats say. Maybe I can lower it a couple of degrees, but not more than that, even when the temperature is so high and I want to lower it much more than that.

Tim Fountain, who spends 150 nights a year in hotels managing sales for a technology company, thinks central limits imposed by hotels make it harder to get rooms to desired temperatures. He carries a travel alarm clock with a thermometer and says 30% of the rooms he has been in have thermostats that misreport room temperature. Worst case: a thermostat that said it was 65 when it was really 72.

“It just gets to be silly,’’ he says.

Hotel consultants and owners say that more than half of all hotel and motel rooms have heating/air-conditioning units mounted on an exterior wall, called Package Terminal Air Conditioning or PTAC. They are notoriously noisy and nicknamed wall-bangers in the industry. If the units aren’t cleaned monthly and switches and controls well maintained, their temperature sensing can be inaccurate by 12% to 20%, says Greg Posmantur, chief executive of JYI Hospitality Management & Consultants, of Cypress, Texas.

“If it’s a limited-service hotel, you’re often dealing with tight budgets,” and units may not get cleaned frequently, he says.